# John Eastman's essay re: Kamala Harris' citizenship: lawyers, does he have a point? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [August 17, 2020, 11:03am UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307 "2020-08-17T11:03:18Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![Elmer\_J.Fudd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/elmer_j.fudd/32/1211_2.png) [@Elmer\_J.Fudd](https://boards.straightdope.com/u/Elmer_J.Fudd)\ **Post date:** [August 18, 2020, 5:42pm UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/102 "2020-08-18T17:42:36Z")
> [@Little\_Nemo](#): > > Pence’s term has a fixed end. He can’t remain Vice President past the end of it unless he is re-elected. What I meant was…If Harris is ruled ineligible after the election but before taking office, wouldn’t the seat go to the second place finisher…Pence? ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [August 18, 2020, 5:47pm UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/103 "2020-08-18T17:47:36Z")
> [@Elmer\_J.Fudd](#): > > What I meant was…If Harris is ruled ineligible after the election but before taking office, wouldn’t the seat go to the second place finisher…Pence? No. That’s not how it works. Reread the post that you responded to. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [August 18, 2020, 6:24pm UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/104 "2020-08-18T18:24:55Z")
> [@Falchion](#): > > (there’s that lawyer that pops up periodically–her name escapes me–who sued Obama a bunch of times on eligibility issues and, I think, also Cruz and Rubio. She does not strike me a someone pushing some nuanced obscure legal theory) Orly Taitz is still around but [she’s had other, closer-to-home things to focus on lately](http://www.metnews.com/articles/2020/taitz041320.htm). And yeah, she doesn’t go for nuance. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [August 18, 2020, 6:54pm UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/105 "2020-08-18T18:54:36Z")
Gorsuch, altho conservative, has signaled that he is NOT trumps butt boy, and that to Justice Gorsuch, the law is pre-eminent, not his politics. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [August 18, 2020, 6:54pm UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/106 "2020-08-18T18:54:56Z")
> [@Elmer\_J.Fudd](#): > > What I meant was…If Harris is ruled ineligible after the election but before taking office, wouldn’t the seat go to the second place finisher…Pence? No. Once the election is completed and Harris is declared the winner, Pence is out of it. He’s not like first runner up in a beauty pageant. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [August 18, 2020, 6:57pm UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/107 "2020-08-18T18:57:30Z")
The courts have taken the position that it is up to the voters, not the courts to decide eligibility. The chance of a SCOTUS ruling anyone ineligible is minute. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [August 18, 2020, 7:16pm UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/108 "2020-08-18T19:16:40Z")
> [@DrDeth](#): > > The courts have taken the position that it is up to the voters, not the courts to decide eligibility. True. The courts have sometimes failed to rule a candidate ineligible even when he undeniably was. Henry Clay, for example, was only twenty-nine when he first entered the Senate. The Constitution clearly says that’s illegal. But the courts just let it pass. ---
**Author:** ![Ann\_Hedonia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ann_hedonia/32/319_2.png) [@Ann\_Hedonia](https://boards.straightdope.com/u/Ann_Hedonia)\ **Post date:** [August 18, 2020, 7:23pm UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/109 "2020-08-18T19:23:54Z")
Drumming up a controversy where none exists is a time-honored right wing tactic and I’m not going going to play into it by engaging in a discussion, because that suggests that there is a basis for debate. ---
**Author:** ![AlsoNamedBort](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alsonamedbort/32/3213_2.png) [@AlsoNamedBort](https://boards.straightdope.com/u/AlsoNamedBort)\ **Post date:** [August 18, 2020, 7:27pm UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/110 "2020-08-18T19:27:06Z")
> [@Little\_Nemo](#): > > No. Once the election is completed and Harris is declared the winner, Pence is out of it. He’s not like first runner up in a beauty pageant. Of course, that depends how you define “election.” There could be a situation where Biden/Harris win, the electoral college votes, and then Congress rejects every vote for Harris. I believe at that point it would go back to the Senate to choose the VP, and there only choice would be Pence. This has approximately 0% chance of happening. ---
**Author:** ![bump](https://avatars.discourse-cdn.com/v4/letter/b/7c8e57/32.png) [@bump](https://boards.straightdope.com/u/bump)\ **Post date:** [August 19, 2020, 9:56pm UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/111 "2020-08-19T21:56:50Z")
> [@eschrodinger](#): > > Where do you get that Cruz is non-white? Yeah, I’d guess “white Hispanic” is his census category. The fact is that he wasn’t born in the US. It’s just that there’s been no actual court case defining that particular qualification yet, so his ineligibility for the Presidency is theory in the same sense as evolution, climate change, etc… ---
**Author:** ![eschrodinger](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschrodinger/32/122_2.png) [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)\ **Post date:** [August 19, 2020, 10:26pm UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/112 "2020-08-19T22:26:40Z")
> [@bump](#): > > The fact is that he wasn’t born in the US. It’s just that there’s been no actual court case defining that particular qualification yet, so his ineligibility for the Presidency is theory in the same sense as evolution, climate change, etc… Uh, no. The theory that he is ineligible to be president is a “theory” like intelligent design is a “theory,” or that 9/11 was an inside job is a “theory.” Ted Cruz is a natural born citizen. One can be born outside of the US and still be a citizen from birth, as was the case for Cruz, whose mother was a US citizen. > **[Opinion | Yes, Ted Cruz is a ‘natural born citizen’](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/01/07/yes-ted-cruz-is-a-natural-born-citizen/)** > > There is no serious question that Sen. Ted Cruz is constitutionally eligible to be elected president. (Whether he should be elected president, however, is a separate matter.) ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [August 19, 2020, 10:48pm UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/113 "2020-08-19T22:48:51Z")
> [@Little\_Nemo](#): > > Pence would not have received a majority of the votes, which would send the selection of Vice President to the Senate. The Senate would choose from the two people who got the most votes, which would be Pence and some third party candidate, probably Spike Cohen. I’m guessing they would pick Pence (unless they really like waffles). The third party candidate would have to actually get at least one electoral vote to be eligible for selection by the Senate. If only Pence gets electoral votes, then the Senate would have a Hobson’s choice of Pence. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [August 20, 2020, 3:11am UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/114 "2020-08-20T03:11:00Z")
> [@RickJay](#): > > The third party candidate would have to actually get at least one electoral vote to be eligible for selection by the Senate. If only Pence gets electoral votes, then the Senate would have a Hobson’s choice of Pence. I was thinking it was the two people who got the most votes and in my head I associated that with the general election. But you’re right; it’s the Electoral College election. ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [August 20, 2020, 5:07am UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/115 "2020-08-20T05:07:43Z")
> [@Falchion](#): > > If true, then we would have denied citizenship to children of all U.S. diplomats and soldiers stationed abroad. You’re not getting the distinction. Children of US diplomats and soldiers are born both outside the limits of the US, _and_ outside its jurisdiction. McCain was born outside the limits of the US, _but within its jurisdiction._ The US Canal Zone technically remained part of Panama; it was never part of the United States. But the treaty allowed the US to act “as if it were sovereign,” so it was under US jurisdiction. Ironically, if McCain had been born a few miles away, in Panama but outside of the Canal Zone, he would have been a citizen at birth. The Canal Zone was a very weird entity. The fact that they passed a law to rectify this indicates that there was in fact a legal issue. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [August 20, 2020, 5:25am UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/116 "2020-08-20T05:25:18Z")
> [@Colibri](#): > > Children of US diplomats and soldiers are born both outside the limits of the US, _and_ outside its jurisdiction. Well, not if they’re born abroad at the embassy (unlikely) or at a hospital or elsewhere on a US military instillation (much more likely). They would be, I believe “outside the limits” but “within the jurisdiction.” Honestly, having been born into the latter category (born on a military installation overseas) I do get a little anxious when these questions get revisited through either legislation or possible legal action as I fear, in their rush to pen and ink a precision strike against a particular opposition candidate or marginalized group, they will end up splattering some of the ink they use to redefine “natural born citizenship” to cover me. To be clear, it would be bad if a certain political party succeeded in getting “natural born citizen” redefined whether it affected me or not. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [August 20, 2020, 10:49am UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/117 "2020-08-20T10:49:05Z")
> [@ASL\_v2.0](#): > > Well, not if they’re born abroad at the embassy (unlikely) or at a hospital or elsewhere on a US military instillation (much more likely). They would be, I believe “outside the limits” but “within the jurisdiction.” Are the installations themselves under US jurisdiction or just the US personnel attached to them? I am not 100% sure of that. What happens if a non-US citizen German commits a crime while visiting his half-brother on a German military base? I don’t know, but I would be surprised to find the US had jurisdiction. And if the US does not have jurisdiction over the installation itself, there isn’t any issue regarding citizenship. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [August 20, 2020, 11:36am UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/118 "2020-08-20T11:36:48Z")
> [@Colibri](#): > > You’re not getting the distinction. Children of US diplomats and soldiers are born both outside the limits of the US, _and_ outside its jurisdiction. McCain was born outside the limits of the US, _but within its jurisdiction._ The US Canal Zone technically remained part of Panama; it was never part of the United States. But the treaty allowed the US to act “as if it were sovereign,” so it was under US jurisdiction. Ironically, if McCain had been born a few miles away, in Panama but outside of the Canal Zone, he would have been a citizen at birth. The Canal Zone was a very weird entity. > > The fact that they passed a law to rectify this indicates that there was in fact a legal issue. I have asked for (but not seen) a citation for the proposition that a law was “passed to rectify” this so-called loophole in the 1795 Nationality Act and none has been provided. There seems to be some confusion in this thread over the fact that there are certain areas (such as unincorporated territories and, indeed, military bases) that are not “in the United States” for 14th Amendment purposes (although “subject to the jurisdiction” of it). And, I believe, that a statute was passed to grant citizenship to children born in the Canal Zone (as is the case for all other unincorporated territories, except , I think, American Samoa), but that doesn’t change the original analysis. (And the general statutory provisions on citizenship at birth have changed since 1795, but I’ve seen nothing to suggest that this issue is why). The relevant question here isn’t whether or not McCain (or, apparently, **ASL\_v.2.0** ) are U.S. citizens by virtue of the 14th Amendment–they’re not. The question is whether the use of “limits and jurisdiction” in the 1795 Nationality Act imposes a similar dual requirement on children born abroad to two U.S. citizen as exists in the 14th Amendment. One principle reason that I say “no” is that, if true, it would apply far more broadly than the Canal Zone (or McCain). Just as your description of the treaty involving the Canal Zone, the treaty allowing for a U.S. military base gives the U.S jurisdiction over the base, but it is not _in_ the United States (see, e.g., my cite from Boumediene). Creating a situation similar to an unincorporated territory. And re: diplomats, it is universally accepted that a child of a foreign diplomat born in the United States is not “subject to the jurisdiction” of the US for 14th Amendment purposes. Why? Because the diplomat (and family) remains subject to the jurisdiction of the home country. The reverse principle applies to US diplomats. Indeed, while I think birth at an embassy falls within the military base principle, the child of a serving diplomat, born _anywhere_ abroad, is born within the “jurisdiction” of the United States. And I don’t think denying them citizenship would have been intended or understood from the statute. And the concept of diplomats would have been familiar to the founders (perhaps they would not have anticipated the unincorporated territories). And remember, the McCain “loophole” posits three situations for children of US citizens: (1) a child born _within_ the limits _and_ jurisdiction who gets citizenship; (2) a child born _outside both_ the limits and jurisdiction who gets citizenship; and (3) a child born outside the limits but within the jurisdiction (or perhaps vice versa) who gets nothing (and, since his parents are US citizens, is perhaps a citizen of nowhere – creating the “racist” class of stateless people that was complained about upthread). The “loophole” presumes that the sole real effect of the 1795 Nationality Act was to strip citizenship from children of these diplomats and, to that, I say “nonsense.” ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [August 20, 2020, 1:15pm UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/119 "2020-08-20T13:15:29Z")
> [@doreen](#): > > Are the installations themselves under US jurisdiction or just the US personnel attached to them? I am not 100% sure of that. What happens if a non-US citizen German commits a crime while visiting his half-brother on a German military base? I don’t know, but I would be surprised to find the US had jurisdiction. > > And if the US does not have jurisdiction over the installation itself, there isn’t any issue regarding citizenship. The US has jurisdiction over the Americans on the installations at the very least. But to be sure, it would be necessary to review the individual status of forces agreement for each overseas presence authorized by the host country and allowing the US a military installation. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [August 30, 2020, 3:28pm UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/120 "2020-08-30T15:28:44Z")
> Newsweek > > Man Arrested For Having Sex With Dog, Caught on Video With Bull Terrier-Lab Mix > > [Man Arrested For Having Sex With Dog, Caught on Video With Bull Terrier-Lab Mix](https://www.newsweek.com/michigan-man-arrested-having-sex-dog-caught-video-bull-terrier-lab-mix-1404370) Welcome to Newsweek. It is not journalism – not even remotely. It is click bait pumped out by employees who are required to produce four stories per day out of what they cull from the dregs of the internet, and whose compensation beyond minimum wage with no overtime is geared to the number of clicks received. Have a read through the special report on Newsweek that was made by the Columbia University Graduate School of Journalism’s Columbia Journalism Review. > **[Dropshipping journalism](https://www.cjr.org/special_report/newsweek.php)** > > No one working at Newsweek can tell me why it still exists And when you are done, ask yourself why so many people are debating the validity of an absurd birtherism claim made by a low ranking law dean rather than either ignoring it or calling it for what it is: another absurd racist attack against a high level black Democrat politician. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [August 30, 2020, 4:43pm UTC](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307/121 "2020-08-30T16:43:47Z")
Nitpick: correct term is _Naturalization_ Act of 1795. And by the 1930s I think the country was using the 1906 revision of the 1870 Naturalization Act. They did not become titled “Nationality” Acts until 1940. Having looked further into [the law that was passed in 1937 about the Canal Zone](https://www.loc.gov/law/help/statutes-at-large/75th-congress/session-1/c75s1ch563.pdf), ISTM from all the sources I can find about it, it had as its real intention to equalize the transmission of citizenship by all US citizens to their children within the Zone – prior to that apparently _some_ US citizens could, and some could _not_, transmit citizenship to their offspring born in the Zone as they would in other jurisdictional areas, I suppose because of omissions in the specific statutes applied to the Zone(\*). ISTM hat **should not have affected _McCain_** himself but could have affected others born in similar circumstances. (\* A specific statute can create exception to a general statute) [Previous page](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307.md?page=5) [Next page](https://boards.straightdope.com/t/john-eastmans-essay-re-kamala-harris-citizenship-lawyers-does-he-have-a-point/918307.md?page=7)